Submission to Congress
30th November, 2005
The DMCA seems to prevent some current rights which are exceedingly important to me:
1. The right to privacy.
2. The right to loan copyrighted works to friends.
3. The right to partake in lawmaking (i.e. democracy).
1. The right to privacy
The right to privacy is exceedingly important to me personally and to democracy.
One of the rights I enjoy is that of purchasing goods without my identity being known. Technology can
take away this right, and the DMCA can make circumventing that technology illegal, effectively
extinguishing the right to privacy.
The right to privacy is important for many reasons, including:
- Privacy encourages free speech, particularly speech which criticises politicians, an important
democratic right, because if people can buy goods without having to yield their identity to the vendor,
they are protected from politically-motivated retribution or oppression.
- Privacy means I can enjoy a work by exchanging money for goods, and nothing else. The transaction is
transparent. A lack of privacy can lead to lower personal security, for example if an online store sells my
personal transaction history to a third party, including such facts as the expensive jewellery I've bought,
or the make and model of the home security system I've bought.
Technology means vendors can require private identifying information from customers before any
transaction can occur. Increasingly in online sales this information is required. As far as I am aware,
copyright does not extend to having to yield up my private information. By what right do vendors
require this information from me? How can I buy from a vendor if the DMCA means that copyrighted
works cannot be sold in a private way? Where is the workaround? If the technology doesn't allow the
work to be sold or resold in a conventional, private way, then there is no workaround.
2. The right to loan copyrighted works to friends
Secondly, I want to preserve the right to loan copyrighted works to friends. If I loan a work to a friend, I
cannot use it concurrently. If I loan a record or a book to a friend, they can see if they like it, and if they
do, they can buy their own copy. Technologically protected works which can't be loaned are additionally
restricted by the DMCA. I can't work around the technology so as to exercise my right to loan. I demand
the right to loan works - all works, even digitally expressed works. I already have that right with
physical goods by common usage. I've had that right all my life. The right has existed for centuries, ever
since people loaned objects to each other. Perhaps that right has existed since we all lived in caves. That
right exists in digital works too; why shouldn't it?
I'm not talking about copying a work, or violating copright.
I'm not talking about using two copies concurrently.
I'm talking about being able to loan a work I have legitimately bought, to a friend to use for a while,
during which time I can't use it, and then my friend will return it to me. I think that is a right.
Technology can remove that right. The DMCA can prevent me from regaining that right. How am I
suppose to exercise that right? How are my friends supposed to determine if they want to purchase a
copy if they can't sample it first? Who gave the copyright owners the power to remove this fundamental
right from me? Who gave the DMCA law the power to stop me regaining this right?
These two cases are related. If I can loan a work to a friend, I don't require them to give their identity to
anyone. In fact, by allowing them to try before they buy, I'm actively preserving their anonymity. If they
don't like the work, they can simply return it to me, no harm done, and they need not give up their
identity to an untrusted third party. I, by loaning a work, preserve their privacy. Technology removes
rights which copyright owners don't always have the right to remove. The DMCA makes it impossible to
rectify those problems.
3. The right to partake in lawmaking (i.e. democracy)
A fundamental problem with many technological access protection schemes is they effectively make
law, without the involvement of lawmaking bodies such as Congress and the Senate. Any company
producing data goods for sale can enact any law they want in software. The software enforces that law,
even if that company has no right to create that law.
For example, a music publishing company can make software which spies on its customers, sending
private information to that company about what music that person listens to, or what other music
publishing companies that person has puchased from. Rights of privacy are eliminated. Even if the laws
of the state in question say you have a right to privacy, software overrides those laws. In other words,
companies are now enacting and enforcing law, through software. If the DMCA makes it illegal to
regain rights lost this way, the DMCA is, in effect, hastening the demise of traditional democratic
lawmaking bodies such as Congress and the Senate. The DMCA is placing into the hands of companies
the right to make laws, without any checks or balances.
Last time I looked, the body of laws known as 'copyright' grants companies very few of the rights they
are now claiming in software. So my question is this: how can consumers regain their democratic rights
when every major publisher of digital works is abusing their ability to enact laws through software? The
fallacy that the marketplace will just "sort itself out" doesn't work when all the major players collude to
remove rights from consumers. The DMCA hampers legislative and practical means to redress these
I have outlined two important rights that consumers are being stripped of through software: the right to
privacy, and the right to loan goods to friends. Software can remove these rights in the case of digital
goods, and the DMCA can make it impossible to restore those rights in pactice. What are you going to
do about it?